Moriggia v. Castelo, 256 N.C. App. 34 (2017)

Vacated and Remanded
  • Facts: Appeal of order granting defendant’s motion to dismiss custody action based on plaintiff’s lack of standing (Rule 12(b)(1)). The parties were in a committed same-sex relationship and decided to have a child. The couple signed a contract, as the “recipient couple”, with Carolina Conceptions acknowledging that any child resulting from artificial insemination will be their legitimate child in all aspects. They each contributed a portion toward the cost of the procedure. The defendant became pregnant via in vitro fertilization by anonymous donor egg and donor sperm. Plaintiff attended the prenatal appointments and parenting classes with defendant, helped prepare the home for the baby, and was present at the birth. Plaintiff’s biological daughter (born before the parties were involved) was recognized by both parties as the child’s big sister. The child was born in 2013, and defendant changed her mind as to plaintiff’s role as a parent insisting that only defendant be treated as the child’s mother. The relationship between the parties ended in 2014, and in 2015 plaintiff commenced the custody action. The trial court made numerous findings about the intentions and actions of the parties regarding the child, both before and after the birth, including that after the birth, defendant changed her mind regarding co-parenting and did not voluntarily create a family unit or cede her parental authority to plaintiff. The trial court concluded the plaintiff lacked standing because although she was a loving caretaker for the child with a substantial relationship, defendant did not act inconsistently with her parental rights giving plaintiff a right to claim third party custody.
  • Sua sponte, the court of appeals held that the trial court in making its determination about whether a parent’s conduct is inconsistent with his or her constitutionally protected status must make findings applying the clear, cogent, and convincing evidence standard. That standard “is integral to the jurisdictional determination”.
  • Standing is an issue of subject matter jurisdiction... subject matter jurisdiction is the basis for motions under Rule 12(b)(1)”. (emphasis in original) (citations omitted). Reviews of a standing is de novo. G.S. 50-13.1(a) authorizes “any parent, relative, or the person, agency, organization, or institution claiming the right to custody of a minor child” to initiate a custody proceeding. Federal and state constitutions place limitations on the application of G.S. 50-13.1 when a third party (a non-parent) is in a custody dispute with a parent. The third party must allege facts demonstrating a sufficient relationship with the child and that the legal parent acted inconsistently with his or her constitutionally protected status as a parent.
  • There is no bright-line test when determining if a parent acted inconsistently with his or her constitutionally protected status; instead, the decision is made on a case-by-case basis. The acts by the parent need not be “bad acts that would endanger the children”. (citing Heatzig v. MacLean, 191 N.C. App. 451, 455 (2008). The trial court may consider defendant’s actions prior to the child’s birth as they are relevant to determining her intention. Those actions alone are not controlling but must be considered with defendant’s actions taken after the child’s birth. The issue is whether the parent intended for the non-parent partner to have a parental role prior to when they become estranged. Whether the parties marry is not determinative. The facts in this case tend to show defendant’s intent to form a family unit with the parties as co-parents even though defendant’s intentions changed later.
Civil Cases with Application to Child Welfare
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